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Administration Revives Dispute Over Eavesdropping Authority

By Barton Gellman
Washington Post Staff Writer
Saturday, March 4, 2006

In a new defense of its warrantless eavesdropping program, the Bush administration yesterday reopened a dispute about whether it tried and failed to obtain direct congressional authority for use of the president's war-making powers on U.S. territory.

The Justice Department has asserted that Congress implicitly granted President Bush the power to secretly order interception of some overseas calls and e-mails made by Americans in the United States when it passed a resolution authorizing use of military force against those responsible for the terrorist attacks of Sept. 11, 2001. Eavesdropping is part of war, the administration maintains, and the battlefield includes the United States.

But former senator Tom Daschle (D-S.D.), majority leader at the time of the vote, argued in a Dec. 23 opinion article in The Washington Post that Congress could not have implied such power because it refused a more direct request.

"Literally minutes before the Senate cast its vote" on Sept. 14, 2001, Daschle wrote, the White House asked to insert the words "in the United States" into the use-of-force resolution. "I could see no justification for Congress to accede to this extraordinary request for additional authority," Daschle added. "I refused."

Assistant Attorney General William Moschella, responding yesterday to questions from Sen. Dianne Feinstein (D-Calif.), wrote that "we do not recall such a discussion with former Senator Daschle and are not aware of any record reflecting such a conversation." Justice Department spokesman Brian Roehrkasse, asked about the letter, said Moschella was referring only to Justice Department officials.

Daschle, in a telephone interview yesterday, stood by his account. "They can deny it, but it happened," Daschle said, "and there's no question in my mind that the reason" is that Bush advisers "feared that they didn't have the authority" to exercise war powers domestically without the inserted language.

Denis McDonough, who was then Daschle's foreign policy aide, said in a separate interview that David Crane, his counterpart in the office of then-Senate Minority Leader Trent Lott (R-Miss.), was the person who brought the White House request to Daschle. "He said, 'We'd like one last-minute change here,' " McDonough said. It was clear from the context, he said, that Crane's request "was coming from the White House."

Reached by telephone last night, Crane said he has "absolutely no recollection of that ever having occurred." Though he took part in negotiations over the use-of-force resolution, Crane said, he had been reassigned to another task before the resolution reached the Senate floor.

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